Sunday, January 28, 2007

More on the "Commander-in-Chief" power

I've been thinking more about the Commander-in-Chief role of the President in the American Constitutional system. Because whether the Democrats like it or not, they have been placed in the position where in order to prevail politically, they have to fight for the Consititution against the Cheney theory of the Unilateral Executive. And the war power is the most important element in that fight, though by no means the only one.

Alexander Hamilton addressed the "commander-in-chief" role of the President in Federalist #69 (1788) in which he argued for the adopted of the proposed Constitution where he wrote:

The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature [Congress]. (my emphasis)

Hamilton compared the virtues of the Constitutional office of the President to that of the British monarchy. Hamilton in this piece takes a very different view of the status of the Presidency than the worshipful attitude today's Republicans show to George W. Bush:

The President of the United States would be an officer elected by the people for FOUR years; the king of Great Britain is a perpetual and HEREDITARY prince. The one would be amenable to personal punishment and disgrace; the person of the other is sacred and inviolable. The one would have a QUALIFIED negative upon the acts of the legislative body; the other has an ABSOLUTE negative. The one would have a right to command the military and naval forces of the nation; the other, in addition to this right, possesses that of DECLARING war, and of RAISING and REGULATING fleets and armies by his own authority.

Commenting on that essay by Hamilton, the great Constitutional scholar Edward Corwin wrote in Total War and the Constitution (1947):

Rendered freely, this appears to mean that in any war in which the United States becomes involved — one presumably declared by Congress — the President will be top general and top admiral of the forces provided by Congress, so that no one can be put over him or be authorized to give him orders in the direction of the said forces. But otherwise he will have no powers that any high military or naval commander who was not also President might not have. Additional testimony as to the purely military significance originally attached to the clause is afforded by Story's statement in his Commentaries, written nearly half a century later, that the only objection leveled against it in the States' ratifying conventions was that "it would be dangerous to let him [the President] command in person." "The propriety," Story adds, "of admitting the President to be Commander-in-Chief, so far as to give orders and have a general superintendency, was admitted." (my emphasis)

Corwin also cites Hamilton during the Washington administration as follows on Congressional war powers. This is made more notable by the fact that Hamilton, leader of the emerging Federalist Party, tended to advocate a more expansive view of Presidential power than the Jeffersonians:

Nevertheless, the executive cannot thereby control the exercise of that [Congressional] power. The legislature is still free to perform its duties, according to its own sense of them; though the executive, in the exercise of its constitutional powers, may establish an antecedent state of things, which ought to weigh in the legislative decision. The division of the executive power in the Constitution creates a concurrent authority in the cases to which it relates.

And Corwin quotes the following from the Supreme Court decision in Fleming v. Page (1850) - which does not seem to be available online, *%^$#@! - on the Commander-in-Chief power. The particular issue was whether the President on his own authority could annex the Mexican port of Tampico, which had been seized in the Mexican War:

His [the President's] duty and his power are purely military. As commander-in-chief, he is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual to harass and conquer and subdue the enemy. He may invade the hostile country, and subject it to the sovereignty and authority of the United States. But his conquests do not enlarge the boundaries of this Union, nor extend the operation of our institutions and laws beyond the limits before assigned to them by the legislative power. ...

In the distribution of political power between the great departments of government, there is such a wide difference between the power conferred on the President of the United States, and the authority and sovereignty which belong to the English crown, that it would be altogether unsafe to reason from any supposed resemblance between them, either as regards conquest in war, or any other subject where the rights and powers of the executive arm of the government are brought into question. (my emphasis)

(Hello, Supreme Court? Library of Congress? Shouldn't the full text of all Supreme Court decisions be available on-line by now? Has Cheney classified all the ones prior to 1890 or something?)

We should remember that at the time of the approval of the Constitution there were essentially no regular national Army and only a small Navy. To raise an Army, the national government had to call up state militias into national service, the same power being exercised today when National Guard (state militia) troops are called to regular service in the national armed forces. So these early discussions often talk about the national forces and the state militias when called into national service interchangeably.

In a debate in the Virginia Constitutional Covention of June 1788, James Madison addressed control over the state militias under the proposed Constitituion. He said:

The State Governments are to govern the militia, when not called forth for general national purposes; and Congress is to govern such part only as may be in the actual services of the United States. Nothing can be more certain and positive than this. It expressly empowers Congress to govern them when in the service of the United States. (my emphasis)

In other words, even though the President is Commander-in-Chief of the armed forces, it is Congress who governs them. "Nothing can be more certain and positive than this," said Madison.

Cheney's and Bush's supporters today are trying to make it sound altogether inappropriate for Congress to use its appropriation powers to set limits to the Executive's military discretion. The Founders saw the war powers of Congress very differently.

Madison's Federalist #41 1788) is particularly interesting in this regard. It was a general assumption among Americans at that time that a standing army, i.e., permanent professional national armed forces, were inherently a danger to freedom. A big reason for the Founders wanting to abandon the Articles of Confederation in favor of the Constitution was to provide more effective means for raising a national army and otherwise providing for the common defense than had been possible under the Articles.

Madison here is arguing for the Constitution and federal government's enhanced powers in that regard. But he did not at all discount the danger to free institutions of a standing army. Rather, he argued that a single nation could not determine solely on its own whether to have a standing army in given historical circumstances:

The fifteenth century was the unhappy epoch of military establishments in the time of peace. They were introduced by Charles VII. of France. All Europe has followed, or been forced into, the example. Had the example not been followed by other nations, all Europe must long ago have worn the chains of a universal monarch. Were every nation except France now to disband its peace establishments, the same event might follow. The veteran legions of Rome were an overmatch for the undisciplined valor of all other nations and rendered her the mistress of the world.

Not the less true is it, that the liberties of Rome proved the final victim to her military triumphs; and that the liberties of Europe, as far as they ever existed, have, with few exceptions, been the price of her military establishments. A standing force, therefore, is a dangerous, at the same time that it may be a necessary, provision. On the smallest scale it has its inconveniences. On an extensive scale its consequences may be fatal. On any scale it is an object of laudable circumspection and precaution. A wise nation will combine all these considerations; and, whilst it does not rashly preclude itself from any resource which may become essential to its safety, will exert all its prudence in diminishing both the necessity and the danger of resorting to one which may be inauspicious to its liberties.

Madison argued that a virtue of the proposed Constitution was that it allowed raising a sufficient national army when required but placed definite restrictions on it so that three people's elected representatives could control them. James Madison certainly did not suffer from the idolatry for the military that we see in today's authoritarian Republican Party, especially the Christian Right, and, sadly, in all to many Democrats. Madison wrote:

The clearest marks of this prudence are stamped on the proposed Constitution. The Union itself, which it cements and secures, destroys every pretext for a military establishment which could be dangerous.

And that vital safeguard was Congress' power of appropriation. The Constitution specifically limits the ability of Congress to appropriate funds for the military for longer than two years at a time, so that the elected representatives will be required to consider it again at least every two years:

Next to the effectual establishment of the Union, the best possible precaution against danger from standing armies is a limitation of the term for which revenue may be appropriated to their support. This precaution the Constitution has prudently added. I will not repeat here the observations which I flatter myself have placed this subject in a just and satisfactory light. But it may not be improper to take notice of an argument against this part of the Constitution, which has been drawn from the policy and practice of Great Britain. It is said that the continuance of an army in that kingdom requires an annual vote of the legislature; whereas the American Constitution has lengthened this critical period to two years. This is the form in which the comparison is usually stated to the public: but is it a just form? Is it a fair comparison? Does the British Constitution restrain the parliamentary discretion to one year? Does the American impose on the Congress appropriations for two years? On the contrary, it cannot be unknown to the authors of the fallacy themselves, that the British Constitution fixes no limit whatever to the discretion of the legislature, and that the American ties down the legislature to two years, as the longest admissible term.